OK, Now This is Getting Ridiculous:
(As if it was not ridiculous from the jump.) Matt Rustler of Stop the Bleating writes:

No, no, no. You're not Richard Belzer in your secret life. In your secret life you hawk Nexium, "The Healing Purple Pill," under the alias, James Naughton. I was watching television last night when the latest Nexium advertisement, featuring an actor named James Naughton, came on. Your cover is blown! I've attached the photographic evidence that you and James Naughton are one and the same.

(Unfortunately, I don't have a photo of "Barnaughton" in the Nexium ad, in which he's clad entirely in black, just as you are in the photo on your BU web page. That would seal your doom.) [I found a pic here--REB] I'm not thrown by your attempt to hide your real identity with glasses and a little hair coloring. How gullible do you think we are? You think Superman's example has taught us nothing?

And did you really think no one would notice the Harvard connection? According to your CV, you were a law student at Harvard Law School from 1974-1977. (Well, you graduated in 1977, so I assume you began in 1974.) And, as you of course well know, Naughton PLAYED a Harvard law student in 1973's The Paper Chase. You didn't think anyone would piece it together? You get part in The Paper Chase, decide you'd like to attend HLS in real life, and the next year you're there — as Randy Barnett. It all fits. Cold busted!

This is preposterous. Naughton's character in The Paper Chase--the doomed Kevin--was married and had a nervous breakdown. I, on the other hand, was very single and was merely annoyed while as HLS. But as Naughton is considerably better looking than Belzer, I consider this a promotion. See this Q & A from Ask Becky Smith:

DEAR MARILYN & STACY: What is the actor's name that does the Nexium commercials, he has gray hair.

DEAR QUEST: You're thinking of handsome James Naughton, who was also the spokesman for Jeep and has appeared in dozens and dozens of TV and movie projects — going back to the 1973 series "Paper Chase" and including "The First Wives Club" and "The Truth About You" with Stockard Channing. Naughton is also a singer and has graced the stage in numerous musicals.

PS: The Paper Chase came out the year before I went to law school. It is a bit depressing how old the actors playing law students in that film now look. Case in point: Edward Hermann:

I don't intend to blog much more on this, but since a bunch of people raised this point, let me speak to it. The argument (buttressed sometimes by citations to the movie Gattaca) is that rich people will improve their kids' genes, which will increase social stratification, as descendants of the poorer people will find it harder to compete. I profoundly disagree with this argument.

1. If you take this seriously, it would be largely an argument against private education (and I've heard the argument made this way), since of course private education lets rich parents improve their kids' competitiveness relative to poor kids. You might even be upset when smart people marry other smart people.

Would you support "breeding for equality," in which smart people self-consciously try to marry dumb people, so their kids wouldn't have too much of an unfair advantage? Or how about programs that try to persuade smart men that the feminine ideal should indeed be the dumb airhead woman (and, of course, to persuade smart women that they should marry dumb men)? Yes, I realize that there's potentially a significant difference in degree between the IQ benefits to be gained by genetic engineering and the IQ benefits to be gained by lay genetics (i.e., smart people marrying smart people) or education. But I stress the "potentially," and in any event the principle strikes me as quite similar.

2. Technological progress is on balance very good, and generally speaking it's disproportionately produced by smart people (technologists, businesspeople, and so on). More smart people means more chance of cures for disease, of better transportation and information technology, of space flight, of good environmental inventions, and so on. Yes, it's true that smart people do harm, too; if Hitler had been dumber, the 20th century might have been less bloody. But on balance, I'm pretty sure that it's good for society generally to have more smart people.

3. Most technologies -- computers, CD players, and the like -- start out expensive enough that only rich people or institutions can afford them, but then, with technological development and economies of scale, the price falls, and more and more people can access the technology. Some Americans may be too poor to afford them, but most Americans can afford technology that provides most of the key features. Rich people can still afford better stuff, but the marginal quality difference between what the 90th percentile can afford and what the 50th percentile can afford isn't that vast. (Consider, for instance, personal computers.)

So if you're concerned that only the top 5% will ever afford getting higher IQ for their kids, that seems highly unlikely. And if you're concerned that only the top 70% will afford it, and oppose the technology because of the bottom 30%, then I think you have the wrong set of priorities. Work on ways to eventually make it accessible even to the bottom 30%, rather than denying it to the top 70%.

There's an old Soviet joke about the man who visits Hell. In Hell, there are three giant cauldrons in which the sinners are being boiled. On the rim of one stands a regiment of demons, shoulder to shoulder, constantly using their pitchforks to smack down the sinners who are trying to escape. On the rim of the second walk a few demons, who occasionally whack someone down. The rim of the third is empty, but no-one is getting out.

What's going on here?, the visitor asks. "There are three kinds of people," the Devil says. (In the original joke, they are Jews, Russians, and Ukrainians, but in honor of the Orange Revolution I've sworn off Ukrainian jokes . . . .) "The first kind is in the first cauldron. When one looks like he's trying to escape, all the rest follow him. We need a lot of demons to manage them.

"The second kind is in the second cauldron. Occasionally someone is trying to escape, but the others don't pay any attention. It takes just a few demons to deal with this kind.

"The third kind is in the third cauldron: When one is starting to escape, all the others drag him back down by the ankles."

Federalism Revolution?:
Adam Cohen suggests in The New York Times that the Supreme Court may be on its way to declaring the New Deal unconstitutional. If you think this is likely, I have a game for you: name the last Supreme Court opinion that ruled in favor of the states or limited federal power in a case that had clear federalism overtones.

If I'm not mistaken, it's been quite a while. The most recent federalism cases decided by the Court are Sabri v. United States, Tennesee v. Lane, Alaska v. EPA, and Frew v. Hawkins. The federal government's side won all of these cases; Frew and Sabri were 9-0. If the Supreme Court is on its way to undoing the New Deal, the Justices must relish the element of surprise.

I have received a surprisingly large amount of email in response to my post on money markets investments and Social Security. To remind everyone, the small point I was making was that even if people can invest some of their Social Security money that does not mean they have to invest it in the stock market. They could invest it essentially risk-free in a money market account and get a low-risk, low-return payoff. So no one is being forced to accept risk that they don't want. (A particular witty response that I enjoyed was whether political critics would consider it "too risky" if people invested their portion in Treasury or other government bonds.)

Most emails, however, did not respond to that particular point but were more general. It is said that I have missed the point about the purpose of Social Security. The argument is essentially that notwithstanding the fact that people could invest in money market funds, some people might foolishly invest in the stock market (for any number of proffered reasons), and the purpose of Social Security essentially is "stupidity insurance"—i.e., to protect people from their own stupidity. Relatedly, it is also to "keep old people from starving in the streets."

It may be obvious to point this out, but the alternative to Social Security is not that old people will be destitute. It is just that old people might not get to retire (and worst case scenario might have to work until they died), or more realistically, that they might have to work longer in order to get enough money to retire at 70 or 75 instead of 65. And the proposal on the table isn't even to eliminate SS, it is simply to allow people to invest some of it, and the concern is that some people might invest their sliver poorly. So no able-bodied person will be destitute if he makes bad investments, he might just have to retire at 68 instead of 65 (and if he makse good investments then he can retire at 62) .

Retirees who aren't able-bodied are covered by a huge web of other social welfare programs, not the core Social Security program that we are discussing. So the recurrent theme of my email traffic that old people will be destitute because of bad investments is not a coherent position. It may be unfortunate that someone who makes good investments can retire a few years earlier than someone who makes bad investments, but that is a long, long way from saying grandma will be sleeping in a cardboard box. But first consider why the "stupidity insurance" argument doesn't add up more generally.

The Stupidity Insurance Argument Proves Too Little. First, the "stupidity insurance" argument proves too little in that it doesn't explain Social Security as it actually exists. First, imagine a hypothetical able-bodied guy who makes such stupid economic decisions that he decides to never gets a job—say he lives with his parents at home his entire life, plays Madden on Playstation 2 all day, and lives off an allowance from his parents. He turns 65. His parents die. He has no job and he is destitute. Is he eligible for SS? No—because he never worked and never paid into the system. You have to actually work a certain number of quarters during your life in order to be eligible. The primary purpose of SS is simply not a social welfare program designed to keep people from being destitute, or stupid guy would be entitled to SS. The logic has something to do with something like an earned entitlement—and part of that earned entitlement involves making the decision to work rather than not work. Second, it pays benefits to high-income people who don't need it. Surely there are plenty of other eligibility requirements that prevent someone from receiving SS. Nothing about eligibility turns on someone's income or how destitute he is or how stupid his economic investments have been. Again, those are covered by other social insurance programs.

Nor does Social Security actually insure you from being destitute. You could take your SS check every month and invest it speculating in the stock market and if you make bad investments you are still destitute. It is still up to you not to make stupid investments, so it simply changes the time of the decision to post-retirement rather than pre-retirement. Or you could have very high credit card bills or other liabilities when you retire, such that almost all your money goes to paying your creditors. It is not clear to me why a 64 year-old cannot be trusted not to invest his social security entitlement in the stock market wisely prior to retirement, but can be trusted as a 65 year old post-retirement to spend his money wisely. So unless we actually control every investment someone makes, we are not providing destitution insurance anyway.

The Stupidity Insurance Argument Proves Too Much. It also proves too much, in that it doesn't explain why we would prohibit this one particular "risky" investment, but allow people to make all kinds of other risky investments that could make them destitute. If the idea is to protect people from their own stupidity, what do we do about the guy who drops out of Harvard to start his own computer company (which will probably fail)—and is not named Bill Gates? Or someone who uses his kid's college fund to start a new business? Most new businesses fail, and when they fail, people often lose their life savings and could become destitute (although they wouldn't be entitled to Social Security). Should we prohibit people from investing their life savings in a new business (rather than forcing them to put it into a passbook savings account) because they are too stupid to realize what a bad investment it is? Indeed, could we in good conscience ever allow someone to quit their job to try to become a painter or an author? Should we only allow 30 year olds to start a new business but not 58 year olds because the latter is too close to retirement age?

In short, if there is a coherent justification for Social Security (and opposition to SS reform) it must be something more along the lines of what I understand it actually to have been its original purpose when it was set up during the New Deal—that Social Security is a retirement entitlement that people earn by working. The idea is that people who work hard for their adult lives are entitled to some degree of leisure in their golden years. And that regardless of whether Homer Simpson works for 25 years as a blue-collar worker at Springfield Power or Montgomery Burns works for 25 years as the president of Springfield Power, they are entitled to the same minimal degree of comfort and leisure in retirement, regardless of what they earned while working. What matters is that they both worked hard for the requisite number of years—if you work, you get it and if you don't work you don't get it. Paternalism and protecting old people from destitution have nothing to do with this. Thus, the program is in fact designed to have some redistributionist, or perhaps more accurately stated, "equalizing" component to it.

This might also provide an argument for why we are concerned about people frittering away some of their SS on bad investments. If you invest the bit of your money that would otherwise go in SS in a bad investment, that may mean that you have to work an extra couple of years before you retire. If we think that people have an entitlement to retire at the age specified by SS, then perhaps this is contrary to the purpose of SS. I personally don't find the argument to be all that persuasive, but it strikes me that a persuasive argument against Social Security reform must be grounded in the actual purpose of the program, rather than overwrought and unrealistic concerns about starving old people.

All the Power of the State:
In closing argument, criminal defense lawyers like to contend that "with all the power of the State at its disposal" why did the prosecutor not produce this or that item of evidence? Well ordinary state court prosecutors (not attached to some special unit) have very little investigative power at their disposal. Our own "investigators" are no Andy Sipowicz's and, once the case is filed, the Chicago Police Department investigators, who do not work for the County, have no obligation to do anything for the prosecutor--though many do so out of a sense of duty to the case and camaraderie with prosecutors they respect.

This is illustrated by the story, to which I alluded yesterday, concerning the difficult process of bringing charges against the cousin of a rape defendant who had tried to intimidate the jurors in the case. I wrote:

I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.

To which one reader responded:

I would say: "Tell it! It sounds like a fascinating story." It's hard for us lay folk to find interesting stories that look into the system like this one would, and like your latest post did. So by all means - write it!

OK, you twisted my arm, but it might not be as interesting as you thought.

I first went to my supervisors who would have to approve any felony charges being brought for intimidating a juror. They decided (unsurprisingly) that writing down plate numbers and pointing after the trial was over was not a compelling case for a felony. I searched the statute books and found the misdemeanor crime of "Communicating with a Juror," the elements of which seemed to fit the facts and misdemeanors did not require a supervisor's approval to bring. (I am relating this from memory so the title of the statute could be off.) I then had to find a judge before whom I could swear out a complaint and ask that a warrant be issued. There was no obvious court to go for such a charge, but I found a judge in the building (the Criminal Courts Building at 26th and California) who was willing to do both.

All this was the easy part.

The hard part was getting the guy arrested. You would think that an arrest warrant would be enough, but you would be wrong. There are many thousands of outstanding warrants and, unless there is some compelling reason, the police are not out looking for any of the persons who are supposed to be arrested. Most arrest warrants are served only when someone is arrested in the act for some other crime, or stopped for a traffic violation.

There are (or at least were in those days) "warrant officers" in every police district, so I called several times to get them to execute the warrant. But no luck, and no surprise. Warrant officers were not famous for the diligence with which they performed their duties. After a few days, I called the District Commander and offered (this is the awkward part of the story) a week's worth of "time due" slips to anyone who would arrest this guy. (Time due slips were intended to compensate officers for time spent in court with time off the job.) Within 24 hours, he was in custody.

I then needed to go to the courthouse in another part of the city where the charges were pending to ensure that the case would not slip between the cracks. Rookie prosecutors in misdemeanor courts might not know enough to take the matter seriously. In addition to being arrested and having to come to court, the guy had to hire a lawyer. After a few appearances, I assisted in plea bargaining the case to a form of probation known as "supervision." If he got in no other trouble over the period of supervision, his criminal arrest could be "expunged" or removed from his record--a process for which he would have to again pay a lawyer. (Of course, the whole process was burdensome for me as well, as it was over-and-above my duties to develop my felony case files and try cases in the court to which I was assigned.)

Eventually, I talked to the guy and he confirmed my original instinct: he was just an ---hole. But my point was made. He had come into "my house" (the criminal court house) and disrespected me (as they now say), the victim, and the jurors. He needed to be taught that this was not kosher. Eventually, he was pretty contrite about the whole thing. Most importantly, I had backed up the jurors who had asked for my help. Notice from the original story that I had taken no action when the guy had tried to intimidate ME besides having him identified in case he became more of a threat that I thought he was. But when the jurors asked for my assistance, I felt bound to support them as they had done their duty as jurors as I had asked them to do in my closing argument.

I was offended by the way Blunkett, and, for that matter, you, glided over the concept that Judaism is a racial characteristic. Jews are not a race, any more than Anglicans or Catholics. Part of the persistence of anti-semitism lies in the thoughtless assumption that there is a race of people known as Jews, instead of a collection of individuals who have certain beliefs.

Well, everyone has a perfect right to be offended by whatever they please. Nonetheless, as I noted in my post, Jews are an ethnic group, though Judaism is also a religion. People can be ethnically Jewish though irreligious — many Jews are.

Certainly many anti-Semites hate Jews without regard to their religion; the Nazis went after the irreligious Jews as well as the devout Jews, and so did the Soviets. Much anti-Semitic propaganda focuses on Jews' supposed ethnic or cultural traits, not their religion. Nor is this just an anti-Semitic view; as I understand mainstream Jewish religious teachings, someone whose mother is Jewish, which is to say generally someone who is ethnically Jewish, is "Jewish" for purposes of Judaism even if he is an atheist.

I realize that there's some fuzziness about the definition of "ethnicity" (it usually turns on people's descent, but descendants of converts to Judaism may often be treated as ethnically Jewish, just as descendants of people who moved to Ireland not long ago may often be treated as ethnically Irish — especially when the descendants are now not in Ireland in any more, and especially if they characterize themselves as Irish). But there's also fuzziness about what constitutes "race." Suffice it to say that an ethnic group is a group that's usually linked by descent and culture, and that perceived itself and is perceived by others as an ethnic group. We need not delve further into this here, except to say that Jews are often treated as an ethnic group much as are Irish, Poles, Gypsies, and so on.

I prefer to use the term "ethnicity" rather than "race" to refer to Jews. Historically, however, the term "race" has also included what we now think of as ethnicity, so Jews, Italians, Irish, and such were sometimes called "races" rather than just ethnic groups (see here). I inferred from the article in the English newspaper that U.K. "incitement of race hatred" law either explicitly applies both to races and ethnic groups (Jews, Irish, and the like), or applies to races but with "race" interpreted — as one important old U.S. statute is interpreted — to include ethnic groups. (UPDATE: Reader Dan Neidle confirms, saying that "[t]he relevant legislation (Part III of the Public Order Act 1986) defines 'racial hatred' to mean 'hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.'")

(The privilege applies to "any journalist, scholar, educator, polemicist, or other individual who" "was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of obtaining or preparing information for dissemination . . . to the general public.)

The Washington Post has an article about sex-selection technologies for couples who are planning to have a baby, and includes the following quote:

"It runs the risk of turning procreation and parenting into an extension of the consumer society," said Michael J. Sandel, a political philosopher at Harvard University. "Sex selection is one step down the road to designer children, in which parents would choose not only the sex of their child but also conceivably the height, hair color, eye color, and ultimately, perhaps, IQ, athletic prowess and musical ability. It's troubling."

Now I agree that there's likely to be a slippery slope phenomenon here, likely either an attitude-altering slippery slope or a small change tolerance slippery slope (see here). But what's at the bottom hardly seems so bad. Some of the floats in that particular parade of horrible are actually quite nice -- I'd love to choose a higher IQ for my kids, and society would generally be better if we could do that, too. (One mustn't overrate intelligence as a cure to the world's problems, but one mustn't underrate it, either.)

Now some of the selection conditions -- hair color and eye color, for instance -- seem pretty shallow. But so what? Parents do shallow things, and are entitled to do them, too, if they don't hurt their kids; and selecting hair color or eye color won't hurt their kids. Likewise, I suspect, for selecting height, athletic prowess, or musical ability.

Now I can see some possible arguments about why this might be bad. Parents who select certain traits for their kids might end up demanding that their kids live up to those traits. "You will practice the piano, and you will like it! I spent $30,000 to get you the piano gene." Maybe. But parents do that these days, too, with traits that they think their kids ought to have -- or traits that they've tried to instill through education, rather than genetics. Do we object to parents trying to create "designer teenagers" because they spend money training their kids athletically, musically, or intellectually? Do we try to suppress those educational technologies? Or do we conclude that on balance more ways for parents to try to improve their kids' futures are better, even if some parents might use those ways unwisely?

I can certainly see some objections to particular design techniques or options. If certain techniques risk kids being born with serious genetic defects, then I'd be "troubl[ed]." But I suspect most parents wouldn't want those techniques, either, and in any case that's an objection to a particular technique, not to the notion of molding one's children's genetics. Likewise if some genetic traits help kids at the expense of others (imagine a gene that makes people resistant to some contagious disease but increases the chance that they'd be asymptomatic carriers) -- troubling, but properly solved by dealing with that particular trait, not by objecting more generally to parents improving their children's lives, or even selecting relatively neutral cosmetic features (such as eye color or hair color).

Raffi Melkonian points to the English proposal to ban incitement of religious hatred as an example of a slippery slope (what I call the "equality slippery slope"):

The British home secretary, David Blunkett, has proposed a ban on speech that incites religious hatred. The law would obviously be unconstitutional in America, I think, since it throughly fails the Brandenburg test. But far more astonishing is one of Blunkett's arguments in favor of the ban. As he puts it today in the Observer,

For example, how can a modern society say Jews are protected (rightly, because they are covered by race laws, rather than religion), yet Muslims and Christians are not? Can it be right that hatred based on deliberate and provocative untruths about a person's religion remains unchallenged?

But this is a particularly weak argument, because it doesn't explain why laws against incitement to racial hatred (but which fall below the barrier to incitement to violence) ought to exist. And for those of us who have heard Professor Volokh's Slippery Slope talk (or read the article), I can't think of a more paradigmatic example of how one undesirable law can be used to faciliate the passage of another one later.

For more on equality slippery slopes, see here (especially starting at p. 17). One way of thinking about this is "censorship envy," as some groups that might otherwise tolerate offensive speech demand its restriction when they see that speech which is hostile to other groups is restricted. (See my explanation of why this should lead us to resist calls to ban flagburning.) Or one could focus on voters in the majority, as the equality slippery slope analysis does: If one important part of a pro-free-speech majority coalition values equal treatment of speech, then carving out one exception may lead them to swing around to supporting another exception, because their preference for equal treatment (e.g., of speech that's hostile to Jews, an ethnic group, and speech that's hostile to Muslims, a religious group) overcomes their support for free speech rights.

In any case, all this suggests that supposed free speech "extremists" or "paranoids," such as those who are (sometimes) in the ACLU, aren't paranoid at all: They are quite reasonably fearful that recognizing even narrow exceptions from free speech (e.g., for inciting racial hatred) may lead to broader ones in the future (e.g., for inciting hatred towards religions, which are after all ideologies that sometimes merit condemnation or even hatred).

UPDATE: The original version of this post said "Muslims, a racial group" instead of "Muslims, a religious group," which made no sense; I accidentally used the wrong word. If you were confused by this at first, my apologies, and I hope this update clarifies it. Thanks to David Ball for pointing out the error to me.

My post below labels Delaware "The Polemicist State," because it seems to be the only state that includes the word "polemicist" in its statutes.

Similarly, let me suggest that Colorado, Kansas, and Texas are The Dildo States, since their prohibitions on distributing sex toys specifically mention "dildoes." Hey, at least they don't engage in circumlocutions, such as "crime against nature." (What would the equivalent for sex toys be — "devices against nature"?)

Massachusetts is The Good Humor State — not just a statute, but an actual constitutional provision (Part The second, Chapter V, section II), says:

Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.

Consider, by way of comparison, the New Hampshire Constitution, which says:

Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people . . . .

Very similar — but no good humor.

It would be tempting to likewise label Indiana The Whoredom State — it's the only state that mentions a derivative of the word "whore" in its statutes — but that would be unfair. See Indiana Code 34-15-5-1, "Every charge of incest, homosexuality, bestiality, fornication, adultery, or whoredom falsely made against any person is actionable in the same manner as in the case of slanderous words charging a felony."

any journalist, scholar, educator, polemicist, or other individual who either:

a. At the time he obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or

b. Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a.

I love how this includes "polemicists." Just try arguing that bloggers (assuming they're professionals) wouldn't be covered by that!

UPDATE: Thanks to reader Eyal Barnea for correcting an error in my original post; I had misread the statute and concluded that it required the blogger to be a professional, but of course it requires that or spending a lot of time.

A Dec. 12 article incorrectly said that Lani Guinier's nomination to head the Justice Department's civil rights division under President Bill Clinton was withdrawn because of a "nanny problem." There was no such problem, and the Clinton White House withdrew the nomination because of controversy over Guinier's legal writings.

Good for them. AP, Knight Ridder, CBSNews.com, MSNBC.com, the <>Houston Chronicle, the Washington Times, and a bunch of other outlets still owe corrections as well — if any of you see such corrections, please e-mail them along.

Buckley v. Vidal:
Long-time fans of either William F. Buckley or Gore Vidal are well aware of their distaste for one another. Each has spilled substantial bile on the other in print. It seems that Buckley has gotten the best of Vidal, however, not just once but twice. According to this notice, it appears that Esquire has settled a libel suit over the publication of a Vidal essay for the second time — once when the article was first published in 1969 and again when it was republished in an anthology in 2003. The notice will appear in upcoming issues of both Esquire and National Review. Of note, Vidal also attempted to sue Buckley for libel in the late 1960s, and that suit was thrown out.
Speaking of libel cases, the Washington Post has an interesting story about another case in the courts now. Here the plaintiff is seeking to use a reporter's comments on various television shows, such as Fox News' "O'Reilly Factor," as proof of malicious intent.

Peterson Jurors Speak:
Like many Volokh readers, I have not been following the Peterson trial very closely, if for no other reason than that I lack all confidence in the competence of California prosecutors to competently handle high-publicity murder trials. But listening to comments of the three jurors now being interviewed live by the networks, my faith in the jury trial system for criminal cases is reinforced. They are intelligent, careful, clear, conscientious and emotionally moved by their experience. Initially, I winced when I saw that the jurors were being interviewed. When I was a prosecutor, I always went to speak with jurors in the jury room afterwards, mainly to express my appreciation. I never asked them the sorts of questions these jurors were being asked. But I am glad I overcame my reluctance, and watched them soberly and thoughtfully respond to questions.

Update:This from a reader whose office put him under contraints in speaking with jurors after trials that were unknown in my office:

I share your faith in the jury system, having had the privilege of conducting a fair number of jury trials myself. Your post made me think of an issue I've thought about off and on for some time now. When I was a prosecutor in the [withheld] DA's Office (not too long ago - I'm in private practice with a firm in Washington D.C. now) we were discouraged from speaking to "convicting" juries for appellate reasons - mainly, the fear that we would hear something impugning the integrity of the process that we'd be duty-bound to report. While I understood and adhered to the unwritten rule, I often thought to myself that defense attorneys were not bound by such restrictions, and thus wouldn't it be better to be present (without actively participating) during such questioning to prevent the creation (accidental or otherwise) of an appellate issue? Or would it be better practice to do as the judge I clerked for did - mandate that he be present during any "debriefing"? Just curious about your thoughts on the matter.

I must confess that I love the entire jury trial experience, which may color my view. I always spoke with alternates, which carried it's own - mainly psychological - risks (they seemed to lean towards the opposite verdict that was ultimately reached, partial or otherwise, which to me demonstrates the power of deliberation). We were also discouraged from speaking with "acquitting" and "hanging" juries because the knowledge gained might be outweighed by the frustration the exercise would engender. The one time I had to deal with that agony was one of the most painfully educational experiences I've ever had. I was only there for 4 years, so I know I would have had to endure that unpleasant experience many more times had I stayed longer.

Perhaps the principal reason I always went to talk with jurors in the jury room after their verdict--which I had entirely forgotten when I posted--was to protect them from potentially inculpatory questions they might be asked by disappointed defense attorneys trying to lay the groundwork for an appeal. I tended not to ask them any questions, but to answer theirs and provide them with other information that confirmed their verdict, thereby personally reassuring them that their decision was well-founded. Also, they seemed to enjoy meeting counsel.

On one occasion, the day after a rape trial ended, I received phone calls from several former jurors informing me that the convicted defendant's cousin was out in the parking lot writing down license plate numbers and pointing at them as they drove home. They knew who he was because he had testified as an alibi witness for his cousin. This was the same person who (before he testified) I had asked the judge to summon into chambers so he could be identified on the record because of his attempt in the elevator to intimidate me and the victim during the trial. So when the jurors complained, having asked them to do their duty and convict the defendant, I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.

Ashcroft v. Raich Transcript Now Available On Line:
Just finished reading the transcript of the oral argument from Ashcroft v. Raich that was posted today here. Of course, you always think of what you could and should have said that you did not say in the heat of argument. But since I have been doing a good deal of that for the past two weeks anyway, it is good to be reminded of what I actually DID say.

I am puzzled by one part of the argument that some have made about the supposed "riskiness" of social security reform. Albert Crenshaw, a business columnist in the Washington Post yesterday called it a "retirement crapshoot", for instance:

And now the Bush administration says it wants to do something similar with Social Security. Instead of a set of benefits fully guaranteed by the government, the administration envisions some type of "personal accounts" — details to come — that could accumulate real wealth over a worker's lifetime.

Could accumulate.

It is certainly true that people who take risks can end up very well off. The economic winners in our society are often described as risk takers. But there is no guarantee. Far from it. In fact, if getting wealthy through investing were a sure thing, there wouldn't be any risk. If that were the case, it might fairly be said that anyone who didn't do it would have only himself or herself to blame.

He continues:

Given the government's performance, the idea of investing on your own does have its appeal. Do it right and you may get rich, which you certainly won't off Social Security.

But that is not the point of Social Security. It's not a lottery ticket. Neither are employer-sponsored pensions. Instead, they are part of the social safety net that has been built up since the Depression to try to keep the elderly out of poverty.

The nation seems bent on transforming both pensions and Social Security into high-risk, high-reward systems in which the clever and the lucky thrive and the unlucky and unsophisticated are left behind.

I am not an expert on the social security reform proposal, but here's a simple question for the critics of the "risky social security scheme". Every 401(k)-type plan in which I have ever had the opportunity to participate offers as one of its investment options money market accounts, which are essentially risk-free and return modest rates of interest. I have seen comparisons of Social Security with the stock market, and the stock market wins over time hands-down. I have not seen any rigorous comparisons with money market accounts, but given the return on Social Security, surely it must be similar.

More fundamentally, if we assume that as part of the social security reform proposal, money market-type accounts are one of the available options for investing, then what's the problem? Workers won't be forced to take any substantial risk that they don't want to take and there seems to be nothing stopping them from taking the low-risk, low-reward path if they want to. Am I missing something here?

Update:

Mark A.R. Kleiman has a thoughtful response to my query. In a nutshell, he observes that the difference in risk is that between a defined benefit and defined contribution plan. True enough. But leaving aside for the moment whether Social Security is viable as a long-run defined benefit plan (which is the nub of the issue, of course), Kleiman's response seems to me to be somewhat different from the one I posed. As I understand Kleiman, and other critics (Crenshaw also suggests this), the criticism is primarily one that a more autonomy-based Social Security system would be less redistributive than the current system--i.e., the current system gives more or less the same basic benefit package regardless of income, whereas the alternative ties results more to the income and decisions of the individual investor. In short, it is an argument that people should not be forced to choose between a high-risk, high-return investment strategy versus low-risk, low-return. Lower income people, or those with less job stability should get a lower-risk, higher-return versus higher income earners. This is a reasonable goal, that I certainly acknowledge and respect. But it strikes me as a concern about the redistributive nature of the system rather than the riskiness of the investments individuals would be forced to bear.

And all that, of course, is premised on the assumption that Social Security really is a low-risk defined benefit plan in the long run, an issue on which I certainly have nothing new to add, as well as the more risk tradeoffs between defined benefit and defined contribution plans generally.

The idea of the right to publish is only a prohibition against government interference. It does not give protection against non-government actions such as lawsuits. . . .

I often hear this argument, but it's mistaken. Lawsuits aren't "non-government actions." A lawsuit is decided by a government actor. If the plaintiff wins, he gets to enforce the award using the government's coercive power. And the law that is being applied is government-made law. That's why the Supreme Court is absolutely right to conclude that private lawsuits based on speech are subject to the First Amendment. Some such lawsuits may be permissible; libel law, for instance, still exists, though it has been cut back by the Supreme Court because of First Amendment concerns. But they are permissible only because the speech on which they're based falls within an exception to First Amendment protection (e.g., the "false statements of fact" exception, which allows lawsuits or even criminal punishments for deliberate lies).

This also makes sense functionally as well as formally. If lawsuits were immune from First Amendment scrutiny, then the legislature could effectively suppress a great deal of speech simply by authorizing private lawsuits. Want to suppress racist speech, anti-government speech, anti-war speech, etc.? Pass a law authorizing anyone who's offended by speech to sue.

Ah, some might ask, but what if a property owner sues protesters for trespassing on his property? Wouldn't the reasoning above make that lawsuit "state action," and subject to the Constitution?

Sure. The trespassing lawsuit is definitely state action (the legal idiom) or government action (the more precise term). But trespassing law doesn't focus on speech because of its content; in fact it doesn't focus on speech at all. The property owner might be suing the protesters because of their speech, but the law is indifferent to their speech or even to whether they were speaking. And this sort of content-neutral, speech-neutral law is constitutional under First Amendment law, even if it happens to be applied at times to speech. But legal rules that apply to speech because of what it says (libel law, intentional infliction of emotional distress law, the disclosure of private facts tort, and so on) are subject to serious First Amendment scrutiny, and often can't constitutionally be applied to speech, because of the First Amendment.

So, as the Supreme Court held in New York Times v. Sullivan (1964), "The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised." If a legal rule makes people legally liable for their speech, the First Amendment is implicated, whether or not the party that starts the litigation is the government.

Jury Recommends Death For Scott Peterson:
If you read the VC, you probably don't care about the Scott Peterson trial. It doesn't raise any interesting legal issues, and worse, gets the uberannoying Nancy Grace on TV all the time. Still, it's possibly worth noting that while some are suggesting that we may be heading towards an end of capital punishment in the United States, no one gave the memo to the jury in the Scott Peterson case. Of course, the judge can still reject the jury's recommendation and sentence Peterson to life. And even if the judge agrees with the jury, most death penalty verdicts are overturned by appellate judges anyway. Still, worth noting.

Ninth Circuit Correction Day:
The Supreme Court gave some relief to police officers in the Ninth Circuit today in two criminal law cases: Devenpeck v. Alford and Brosseau v. Haugen. Devenpeck was reversed 8-0, with the Chief not participating. Brosseau was reversed 8-1, with Justice Stevens dissenting.

Brosseau is a per curiam summary reversal of a Ninth Circuit opinion by Judge William Fletcher joined by Judge Stephen Reinhardt. Fletcher and Reinhardt had held that a police officer was not entitled to qualified immunity for shooting an apparently disturbed, violent felon who repeatedly refused to surrender to the police and was attempting to escape by starting a high speed chase through a suburban residential neighborhood. The suspect was injured by the shot, but continued to drive away from the police. After he was caught, the suspect brought a civil rights action against the police for violating his constitutional rights. The trial judge had held that the officer was entitled to qualified immunity, but a divided panel of the Ninth Circuit reversed. Judge Gould dissented.

Today the Supreme Court reversed the Ninth Circuit, with all but Justice Stevens on board for the reversal. The Court did not decide whether in fact the officer's conduct violated the suspect's constitutional rights. Instead, the Court held that even assuming it did, the violation was not so clear that it should strip the officer of her qualified immunity protection. According to the Court, the law separating excessive force from allowable force in this type of context is so fact-specific, and the cases so sparse, that the officer's conduct did not violate "clearly established law" as is required to strip an officer of qualified immunity.

In Devenpeck, the Court rejected a Ninth Circuit doctrine that required judicial review of probable cause for an arrest to consider only evidence known to the officer for offenses "closely related" to the offense that the officer named when he made the arrest. If an officer had evidence that the target had violated Crime A and unrelated Crime B, but when he made the arrest informed the suspect that he was being arrested for Crime A, the legality of the arrest could not be judged by considering the evidence that the officer had for Crime B. In a unanimous opinion by Justice Scalia, the Court did away with this doctrine on the ground that it was based too much on the subjective intent of the officer and had perverse consequences. While designed to deter sham arrests, the Ninth Circuit rule was inconsistent with the Supreme Court's approach to probable cause and merely encouraged officers not to name the reason for the arrest.

Outside his courtroom he has a Christmas tree and a menorah next to a table with a coffee set-up. The menorah and Christmas tree are very close. He also has strung some Christmas lights along the floor to set a little path into the courtroom. On the opposite side of the path are two reindeer, one of which is wearing sunglasses. The distance from the Christmas tree to the reindeer appears to have been carefully measured, perhaps to test the outer limits of the reindeer-proximity rule. There also is a Frosty the Snowman near the display, the tree, reindeer and snowman forming a roughly equilateral triangle. Overseeing it all is a hovering flying pig, perhaps a comment on the foolishness of most Establishment Clause jurisprudence.

Clearly a great deal of thought went into this. I am mightily impressed.

John Corvino was visiting Austin three months ago when he met a man at a Congress Avenue coffee shop and decided to take a walk with him on the nearby Capitol grounds.

They spent several minutes chatting and occasionally kissing. Then, according to a written complaint, they were interrupted by a state trooper who told them twice that "homosexual conduct is against the law in Texas."

Texas Department of Public Safety officials said Friday that they have placed the trooper, Michael Carlson, on probation for six months and issued a written reprimand. Carlson also has been ordered to undergo more training on Texas laws. . . .

Texas law does not prohibit gay people from kissing. . . .

I'm not sure that public kissing, regardless of the parties' sex (and whether or not on the first date), has ever been illegal in Texas. It would take a strikingly misinfored police officer to assume that it is illegal today -- either that, or an officer who thinks his job is to enforce his personal preference, rather than the law.

Predictably, Bernard Kerik's abrupt withdrawal as Bush's nominee for Director of Homeland Security, ostensibly for nanny-type problems (but see the New York Daily News in particular for Kerik's other "difficulties"), has led our friends in the mainstream media to recall that some Clinton nominees had to withdraw for similar reasons.

Amazingly, though, some of the reporting is completely wrong. I refer in particular to several stories (and there are dozens more out there - Google it yourself) stating that Lani Guinier withdrew as Clinton's nominee for head of the Justice Department's Civil Rights Division because she had failed to pay taxes for a domestic worker.

As anyone with even a few brain cells left should recall, however, Lani Guinier withdrew because some of her writings were wildly misrepresented, she was smeared as a "quota queen," and Clinton backed down in the face of right-wing pressure. (It was not Bubba's finest moment.) Maybe I'm wrong, but I don't remember anything about Guinier having "domestic worker" problems. If you can find a source from the relevant time period (1993) referring to any such problems, I'd like to know about it.

This is really scary. The Guinier business was extremely well-publicized at the time, and it was not that long ago. If reporters and editors working for CBS and MSNBC (and many others) can't even get the basic facts about it right, can we really expect them to report intelligently and accurately about social security, income tax reform, judicial nominations, and a host of other important but complex issues coming down the pike?

I express no views on whether Guinier's work was in fact misrepresented; but the rest of the item seems quite right to me. Unless there's something about the Guinier story that I had also missed — and if there is, please let me know so that I can correct the post — this seems like a nontrivial error by the media. They're not just wrong here, but they're wrong in a way that falsely accuses someone of violating the law. That doesn't speak well of their trustworthiness in other fields.

UPDATE: Just to make it clear, Kravitz and I of course know that Zoe Baird, Kimba Wood, and Stephen Breyer were torpedoed by similar objections, as eventually was Linda Chavez. (This happened to Breyer the first time he was talked about for a vacancy, which Clinton filled with Ruth Bader Ginsburg.) The first three were Kravitz's "some Clinton nominees had to withdraw for similar reasons." Our point is that the media seems to be confusing Guinier with them.

FURTHER UPDATE: I did a bit more looking through news stories that came out in 1993, when Clinton nominated Guinier and then withdrew support for her. (I had done some when first posting this, but I've done more since.) None mention any "nanny problems" for her, even though some mention the Baird/Wood/Breyer nanny problems and then describe Guinier as having lost support because of statements in her published works. Again, I may be mistaken -- if you have contrary evidence, please let me know. But it looks like this is indeed an error by a bunch of media outlets (Washington Post, AP, Knight Ridder, CBSNews.com, MSNBC.com, Houston Chronicle, Washington Times, and others).

My colleague Don Boudreaux, Chair of the GMU Economics Department and sometimes Professor in the GMU School of Law reminds us of the logic of marginal deterrence:

13 December 2004

The Editor, New York Post

Dear Editor:

Readers opposed to milder drug sentences (Letters, Dec. 13) forget that an important goal of the structure of criminal penalties is to deter those who commit lesser crimes from committing more serious crimes.

In New York, the minimum sentence for second-degree murder is 15 years. For first-degree murder it's 20 years. If the minimum mandatory sentence for the sale of more than two ounce of heroin or cocaine remains at 15 years, the additional punishment suffered by drug dealers who commit 2nd-degree murder during drug sales gone bad is now as low as nothing. For first-degree murder the additional penalty is as low as five years.

To elaborate--if you get the same penalty for simply selling drugs to Mr. X (who can then rat you out) versus by selling drugs to Mr. X and then murdering him so that he can't rat you out, you will be providing strong incentives to murder the rat if you are afraid that he will turn you in.

A reader recently queried whether someday we might see an economist on the Supreme Court. Sounds like we could use some economists in Congress first. Now that Dick Armey and Phil Gramm have both retired, are there any trained economists left in Congress?

Update:

I have been reminded, that the premise of the marginal deterrence criticism is that the sentences are served concurrently rather than consecutively. I am told by readers more expert in the particularities of New York law that New York would generally impose consecutive rather than concurrent sentencing in the example of a murder committed in the course of a drug deal.

Just finished a draft of my Child Custody Speech Restrictions paper -- it's been very interesting, but time-consuming, which is why I haven't been blogging much recently. Hope to post some things that have been backed up in my queue, though their news hooks may have gotten a little stale.

Sunday, December 12, 2004

Thank you Instapundit. The New York Times writer, Christopher Shea, saw my earlier post on Criminalizing Reckless Sex, when Glen[n] Reynolds linked to it. And the Times Sunday Magazine included the idea in today's "The Year in Ideas" issue.

Instapundit — where the New York Times looks for big ideas.

UPDATE: Or not. Christopher Shea writes in to say that he read about Criminalizing Reckless Sex from Balkinization itself. Plus, he's a freelancer, not an NYT writer. So make that: "Balkinization -- where freelancers who are writing for the New York Times look for big ideas." Sorry, Glenn.

Criminal law geeks around the country are wondering whether tomorrow morning the U.S. Supreme Court will release its opinion in United States v. Booker and United States v. Fanfan, the cases that consider how last year's blockbuster opinion in Blakely v. Washington applies to the U.S. Sentencing Guidelines. I haven't blogged on Blakely issues because I have an unusual perspective on the case; I was clerking for Justice Kennedy when Blakely was decided. When Booker/Fanfan is handed down, however, I plan to give it a read and post my thoughts on the new decision together with some broader thoughts about the Apprendi/Blakely movement, where it came from, and where it might be going. I have no idea whether that day will be tomorrow or later, but if it's tomorrow I'll try to post something by early afternoon.

Rather Investigative Report may not be Released in Full.--
I was one who agreed with CBS that the report on the forged memos should have been delayed until after the election (a position for which I took a little criticism). Further delays may still be justified if the investigators are responding to criticisms of their first draft--checking issues that were under-investigated in the first place.

But RatherBiased.com is reporting that the current debate at CBS is over whether to release the full report (tip to Glenn). The Report probably does involve the employment status of some of CBS's staff members, so there might be some reason to suppress a few sentences giving context on individual employment backgrounds not directly involved in the actions being investigated. I could also imagine that some recommendations for future action might be only hinted at in the report and then delivered in person to the top honchos. Other than that, I don't see what should be withheld. And I still think that CBS should release a draft of the report for comment before finalizing it.

Unless the full report is shown to only a half-dozen people, I don't see how they will be able to keep it private. You would think that a news organization would want more transparency than most other organizations in the US. More tellingly, you would think that CBS would understand that times have changed; it is very hard to keep the lid on something like a damaging report--or whether memos in a news story are forged. If RatherBiased.com is correct, it suggests that some at CBS still don't get it.

There is a fascinating column by Victor Hanson Davis on the similarities between the Ents of Tolkien's books and modern Europe (tip to Betsy).

One of the many wondrous peoples that poured forth from the rich imagination of the late J. R. R. Tolkien were the Ents. These tree-like creatures, agonizingly slow and covered with mossy bark, nursed themselves on tales of past glory while their numbers dwindled in their isolation. Unable to reproduce themselves or to fathom the evil outside their peaceful forest — and careful to keep to themselves and avoid reacting to provocation of the tree-cutters and forest burners — they assumed they would be given a pass from the upheavals of Middle Earth.

But with the sudden arrival of two volatile hobbits, the nearby evils of timber-cutting, industrial devilry, and mass murder became too much for the Ents to stomach. They finally "wake up" (literally). Then they go on the offensive — and are amazed at the power they still wield in destroying Saruman's empire. . . .

More specifically, does the Ents analogy work for present-day Europe? Before you laugh at the silly comparison, remember that the Western military tradition is European. Today the continent is unarmed and weak, but deep within its collective mind and spirit still reside the ability to field technologically sophisticated and highly disciplined forces--if it were ever to really feel threatened. One murder began to arouse the Dutch; what would 3,000 dead and a toppled Eiffel Tower do to the French? Or how would the Italians take to a plane stuck into the dome of St. Peter? We are nursed now on the spectacle of Iranian mullahs, with their bought weapons and foreign-produced oil wealth, humiliating a convoy of European delegates begging and cajoling them not to make bombs--or at least to point what bombs they make at Israel and not at Berlin or Paris. But it was not always the case, and may not always be.

The Netherlands was a litmus test for Europe. Unlike Spain or Greece, which had historical grievances against Islam, the Dutch were the avatars of the new liberal Europe, without historical baggage. They were eager to unshackle Europe from the Church, from its class and gender constraints, and from any whiff of its racist or colonialist past. True, for a variety of reasons, Amsterdam may be a case study of how wrong Rousseau was about natural man, but for a Muslim immigrant the country was about as hospitable a foreign host as one can imagine. Thus, it was far safer for radical Islamic fascists to damn the West openly from a mosque in Rotterdam than for a moderate Christian to quietly worship in a church in Saudi Arabia, Iran, or Algeria. And yet we learn not just that the Netherlands has fostered a radical sect of Muslims who will kill and bomb, but, far more importantly, that they will do so after years of residency among, and indeed in utter contempt of, their Western hosts. . . .

So will the old Ents awaken, or will they slumber on, muttering nonsense to themselves, lost in past grandeur and utterly clueless about the dangers on their borders?

Saturday, December 11, 2004

As part of Saturday Night Live's Weekend Update tonight, Tina Fey did a bit in which she recalled some of the misconduct that Andrea Mackris accused Bill O'Reilly of committing. Fey ended by saying, "Don't Forget That Bill O'Reilly is Disgusting," with the screen filled with a title with those words.

Although it might have been a onetime bit, I have a suspicion that this could be a recurring riff, with more details from Mackris's now withdrawn complaint coming out each week. Even if FOX News doesn't hold O'Reilly accountable, SNL might just do that.

Of course, we do not know whether Mackris's allegations of what O'Reilly said to her are true, but if O'Reilly denied the words attributed to him, I missed it. And, of course, FOX News has the power to get to the bottom of the facts if they choose.

The American Chemical Society filed a complaint on Dec. 9 against Google Inc. in U.S. District Court for the District of Columbia. The complaint contends that Google's use of the trademark "Scholar" for its Google Scholar literature-search engine constitutes trademark infringement and unfair competition. A beta version of Google Scholar (http://scholar.google.com) debuted in mid-November. The search service allows users, at no cost, to "search specifically for scholarly literature, including peer-reviewed papers, theses, books, preprints, abstracts, and technical reports from all broad areas of research," according to a Google website. The ACS complaint contends that Google's use of the word scholar infringes on ACS's SciFinder Scholar and Scholar trademarks and constitutes unfair competition. SciFinder Scholar, a desktop research tool designed for academic scientists, was launched six years ago. ACS's Chemical Abstracts Service estimates that about 1,000 colleges and universities have bought the service, which provides access to all of CAS's databases, including information on journal and patent references, substance information, regulated chemicals, chemical reactions, and chemical supplier information.

I don't remember enough about trademark law to comment intelligently, at least without doing more research than I feel like doing. But this sounds pretty fishy to me.

Rutgers-Camden Law School and the Constitution Center are organizing a very interesting sounding conference on this subject. It's inspired by University of Chicago Law Professor Geoffrey Stone's recently published book, Perilous Times: Free Speech in Wartime (Norton, 2004), and it will include many noted experts, including Federal Third Circuit Judge Michael Chertoff and First Amendment lawyer Floyd Abrams. Details are here; admission is free, though you must register.

Brian Leiter, who knows a few things about rankings, describes the Legal Affairs Top 20 Legal Thinkers poll as a "meaningless publicity stunt":

The list of candidates is--to put the matter gently--absurd, not because there aren't substantial "legal thinkers" on the list (there are some), but because there are far too many on the list who aren't leading legal thinkers by anyone's lights, and some who aren't even capable of thinking based on any evidence I've seen.

Hyperbole aside, this seems basically right. The list of nominees is a list of well-known academics, judges, and journalists - not a list of top legal thinkers. This raises an interesting question, though: What does it mean to be a top legal thinker? And maybe another: Why the fascination with rankings?

I would be interested in reading what you think about this; I have enabled comments.

The Law.com newswire just to the right of this post on the VC page has a story about Betcom.com's odds on the next Supreme Court Justice. The actual odds are posted on Betcom.com here. Current favorites are Fourth Circuit Judges Luttig and Wilkinson.

According to the Law.com story, however, the betting lines will not adjust based on actual wagering, so it is difficult to read much into the reliability of these odds. Further reason for skepticism about the value of the odds is that the pool of potential chief justices, for instance, only includes sitting Associate Justices.

On the other hand, if the purpose was to get free publicity for Betcom.com, it certainly has worked (as this post itself evidences).

Update:

When I clicked on the Betcom.com post, it didn't seem to take me directly to the Supreme Court proposition. The full odds are reproduced here, although you obviously can't place a wager there.

A new entrepreneurial venture from some scholars of entrepreneurship. The BizFems Speak! blog is no more, but the chief BizFem Christine Hurt of Marquette Law School has moved over to team up with Gordon Smith of the University of Wisconsin Law School at the Conglomerate. They describe their founding:

Welcome to the new Conglomerate blog from Gordon Smith and Christine Hurt, two corporate law professors in Wisconsin. For the past 18 months, Gordon has been blogging at Venturpreneur. Meanwhile, in addition to a guest blogging stint on Venturpreneur this past summer, Christine has been blogging at Biz Fems Speak! Those two blogs are gone now, though the Venturpreneur archives will remain on this site, and the Venturpreneur url is hanging around for a few more days while we set up our new home. Both Christine and Gordon will be blogging here, and you can expect a quirky mix of entries about business, law, Wisconsin, legal education, and whatever else strikes our fancy (including, of course, cheese for Gordon).

Although this now knits together two of the state of Wisconsin's leading corporate law scholars, rumors that they will change the name of their blog to "The Cheeseheads" and write exclusively on Green Bay Packers news appears to be untrue.

Friday, December 10, 2004

Bainbridge Blasts Chait:
Jonathan Chait wrote a rather dismissive LAT column on why there are so few conservatives in academia. Stephen Bainbridge, who has a rather different (and more accurate — but not just because he agrees with me) assessment from within the academy, takes Chait to task for "peddling shopworn lies." Specifically, Bainbridge notes that neither of Chait's explanations — that few conservatives (and libertarians) desire an academic career and that folks on the Right are less educated — can bear up under scrutiny.
Bainbridge cites current evidence that the academy can be quite hostile to folks with right-leaning views: the "controversy" over Jack Goldsmith's appointment at Harvard. Whether or not one agrees with Goldsmith's work, there is no question that he is among the top scholars in his field — and well deserving of a Harvard appointment. Yet some of his new colleagues (thankfully a minority on the faculty) are aghast at his views and wish he weren't there. Professor Goldsmith has enough of a reputation to weather such attacks, but more junior folks are often not so lucky.
In my own experience, the networking effects Professor Bainbridge describes and other unconscious biases are the dominant obstacles to conservatives, libertarians, and others outside of the academic mainstream. I also believe many conservatives are too quick to blame politics for their own academic career disappointments. Yet real bias can rear its ugly head. When I was an undergrad at Yale, I learned from a very liberal professor that one of his colleagues was systematicly black-balling right-leaning grad student applicants in their department. I have also heard law professors express opposition to job candidates because they clerked for the "wrong" Supreme Court Justice and suggest that job candidates cannot be intelligent if they hold certain conservative views.
I have personal experience with this sort of thing too. When I was on the job market, I was explicitly told by individuals at several schools that I would not be interviewed because of opposition to my politics on their hiring committees. Things worked out for me — I'm quite pleased with my current academic gig, believe that the liberal dominance of the academy will not prevent my future academic success, and expect (hope) to let my pseudonymity lapse in the relatively near future. Alas, it is clear to me that there are some who are not so lucky.

It was the third time that O'Reilly has attacked the judge on TV. Months ago, O'Reilly vowed to make sure Rapkin was not re-elected — when Rapkin announced he was retiring at the end of this year, O'Reilly took some of the credit.

Wednesday night's salvo was over another Rapkin ruling. Last month the judge overturned the city's camping law, which allowed police to arrest hundreds of homeless people.

O'Reilly let him have it.

"Now tomorrow, when a homeless person in Sarasota kills a little girl, then Rapkin gets that on his sheet, too?" O'Reilly asked a Sarasota police lieutenant on "The O'Reilly Factor."

Rapkin, reached a few hours before the show at a private retirement party at a Main Street bar and restaurant, said O'Reilly has "got a lot of nerve" to attack him.

"Somebody who sexually harasses women and then pays millions of dollars in a settlement to get out of it has no place criticizing me," said Rapkin.

While the charges that O'Reilly was being blackmailed were at least plausible, so was Andrea Mackris's account alleging that she was repeatedly harassed by O'Reilly. Did FOX investigate O'Reilly? Given the seriousness of the charges, they should have.

If FOX did investigate, then only if the charges were untrue should there be no serious discipline (of course, not all serious discipline is public).

If Mackris's account is true (and on the surface it seemed to be based in part on transcripts of phone conversations), then I don't see how FOX News could fail to take action against O'Reilly.

I understand that this was not on-air misconduct as in the Dan Rather affair, but (if true) it was extremely serious misconduct by one FOX employee against another employee of FOX. (Tip to Instapundit.)

I was surprised (and delighted) to see that the Washington Times today heavily discusses Wine Wars in a house editorial on the wine cases. They correctly summarize my argument:

But as Todd Zywicki, a George Mason Law School professor, points out in "Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine," there are a few problems with this interpretation. First, Section 2 never mentions the dormant Commerce Clause. To believe that Section 2 only refers to the Commerce Clause is not only a distortion of the intent of Section 2, but goes against prior court interpretations of what Section 2 actually grants to the states. Mr. Zywicki refers to a 1964 ruling that said, "To conclude that the Twenty-first Amendment has somehow operated to 'repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned would ... be an absurd oversimplification." Further, the intent of the entire 21st Amendment was to return the country to the careful balance of state alcohol regulation it enjoyed before Prohibition. It was not meant to give the states protectionist powers over their alcohol industries, as it is now being used.

My colleague Neil Netanel reports that the Supreme Court has agreed to hear the Grokster case, and will thus again consider when the distributors of a product can be held liable on the ground that the predominant uses of the product are copyright infringement. (The last time the court considered this was in Sony v. Universal, the VCR case.)

The explosion at a Long Island Railroad station that injured Helen Palsgraf not only made her family name a household word — at least in households with lawyers — it also began what some of her descendants call a curse. In the eight decades since the New York Court of Appeals in Palsgraf v. Long Island Railroad outlined the two competing theories of proximate cause, a branch of the Palsgraf family has been beset by bad luck, serious injuries and losing lawsuits, just like their matriarch, Helen Palsgraf.

Video Voyeurism Prevention Act:
The Associated Press reports that this week the Senate approved by voice vote a new privacy law, the Video Voyeurism Prevention Act, that the President is expected to sign shortly. The law basically prohibits intentionally taking a picture of someone naked or in their underwear, without their consent, if at that time the person reasonably expected privacy. In other words, no using cameraphones in locker and shower rooms.

I hadn't heard a peep about this law — so to speak — which I suppose reflects the absence of a Peeping Tom lobby on Capitol Hill. You can find the text of the bill here. Notably, the law will only apply "in the special maritime and territorial jurisdiction of the United States." That phrase is defined in 18 U.S.C. 7, and basically ends up being a complicated way to say "on federal property." Congress could have been much broader here: they could have made the conduct a crime when it occurs anywhere in the U.S. so long as the image travels in interstate commerce. The much narrower approach means that this law is mostly designed to apply on military bases and on federal parks. Also, since the crime is only a misdemeanor, not a felony, it is especially unlikely to be prosecuted very often. My guess is that there will be a handful of prosecutions a year, tops.

Is the new academic group blog Left2Right turning into a liberal Volokh Conspiracy? Majikthise thinks so. I won't believe it until I see multiple links to You Can't Say That! or its L2R equivalent. If it happens, though, I say we merge — it seems the conspiratorial thing to do.

I love it when columnists or other pundits tell me what I think. Here's the sort of thing I'm talking about. Michael Wilbon and Mike Wise are two sports columnists at the Washington Post (and darn good ones, too - the Washington Post has many flaws, but it also boasts an extraordinary array of fine sportswriters). In a recent column about baseball's steroid scandal, Wilbon wrote that:

" . . . what intrigues me now is the lack of public outrage regarding all of this. . . . I'm looking at e-mail after e-mail expressing emotions that overwhelmingly range more from sadness to indifference. . . . People in and around Washington were much more exercised on the issue of benching Mark Brunell a couple of weeks ago than they are over the news or the implication that Giambi, Bonds and Jones have all cheated their sports and lied about it, which leads me to wonder how big a scandal this is . . ."

And Wise was even more concerned about "our" indifference to the revelations of steroid use:

"The steroid issue is not something friends call breathlessly to talk about. For months it has been a media-driven story, fueled by dogged journalists committed to facts rather than opinions. They were not on a witch hunt; they felt the public needed to know. The terrible thing about their pursuit of the truth is that the public barely wants to know. They don't care how Barry Bonds hits baseballs into McCovey Cove; they care that he does it. . . . That's what the BALCO investigation and the grand jury testimony leaked in the San Francisco Chronicle this past week is ultimately about. . . . We thought we knew, but we didn't. And when our beliefs were challenged by irrefutable evidence -- at least embarrassing, if not damning, in Bryant's case -- we turned the channel. We reached for the box scores. We believed what we wanted to believe."

Is that so? Now, I'm actually interested in hearing what Wilbon or Wise thinks about all of this steroid stuff - that's why I read their columns. But I'm really not interested in hearing what they think I think (or, by extension, what "the public" thinks), mostly because I cannot imagine how they could have the faintest idea what I (let alone "the public") think.
Maybe I'm making too much of this - but I think this is one of those things that, when you start looking for it, pops up all over the place, in all sorts of contexts - stories or columns or opinion pieces that are not about "Something that Happened" but about "Our Reactions to the Thing that Happened." And it annoys the hell out of me, every time I see it.

Thursday, December 9, 2004

The Creators Syndicate felt that a Sam Francis column complaining that recent episodes in popular culture celebrate interracial relationships was acceptable, according to this report;

"Did I disagree with the column? Yes," responded Anthony Zurcher, a Creators editor who saw the Francis piece before it was syndicated. "Did I feel it was so reprehensible that it shouldn't have been sent out? No."

Zurcher also said he did not know how many of the 22 papers that subscribe to Francis' columns opted not to run the offending (and I would say, quite offensive) piece.

Vote For the Most Influential Legal Thinkers in America!:
Larry Solum (Legal Theory Blog), Eugene Volokh (Volokh Conspiracy) and Glenn Reynolds (Instapundit) have been nominated for the Top 20 Legal Thinkers in America by Legal Affairs. Larry and Eugene are nominated in the "Academics" category, while Glenn is nominated in the "Writers/Commentators" category. According to Legal Affairs: "Your job is to vote for your top five, plus a favorite who's not on the list, by March 1, 2005." You can place your vote by clicking here.

Update: Immediately upon posting this, I saw that Orin beat me to the punch, though much more sardonically.

Press Coverage of Ashcroft v. Raich:
A lot has now appeared in the press concerning oral argument in Ashcroft v. Raich, including favorable editorials in both The New York Times and Boston Globe. Two particularly insightful analyses appeared today that I thought merited a link. The first, Feds v. Meds, from the Los Angeles City Beat explores the following theme:

The case is a mighty test of states' rights, which this court has previously favored. But the barrage of questions the justices fired at Raich's lawyer, Boston University professor Randy Barnett, revealed more than the possible end of their so-called "federalist revolution." They revealed the interior machinations of a kind of regulatory fever dream in which no government agency will confront the increasingly embarrassing mass of scientific evidence in favor of pot's accepted use as medicine.

Indeed, the case will test the court's predictable range of opinion. The more conservative judges - like Rehnquist, who penned the Lopez and Morrison decisions, and Justice Antonin Scalia, who voted with the majority in the recent commerce cases - will be asked to extend their staunch federalist positions to activities they seem predisposed to dislike. Similarly, the court's more liberal justices, like Justice John Paul Stevens, would likely endorse the affirmation of broader federal regulatory authority than his conservative colleagues - but will he do so at the very private cost of the health and well-being of Raich and Monson? On Nov. 29, the contradictions of the court's competing values took center stage, creating a very odd hour of oral arguments.

Lame:
Judge Charles Pickering, recess appointee to the Fifth Circuit, has taken the announcement of his retirement as an opportunity to run down the list of talking points used by his supporters and launch some zingers against the opponents of his nomination. Pickering got a raw deal; in classic Washington fashion, he became a convenient political football used to rehearse some tactics in preparation for a future Supreme Court opening. Still, remarks like that don't help his legacy.

Another interesting article by one of my colleagues is a forthcoming article by my colleague Kathy Zeiler, co-authored with the legendary Charlie Plott, in the American Economic Review on the so-called "endowment effect." The "endowment effect" has emerged as a staple of behavioral economics, especially in critiques of the real-world validity of the Coase Theorem. Plott and Zeiler conclude, "The primary concluion that one derives from the data reported here is that any observed WTP-WTA gap is not a reflection of a fundamental feature of human preferences." Instead, they conclude that the results of studies that find a WTP-WTA gap are an artifact of the particualr experimental procedures that are used in the studies, and thus are extermely sensitive to changes in experimental conditions and procedures, rather than a stable characteristic of individual preferences.

The article also has a very useful and comprehensive bibliographic collection of all of the studies that have been done on the endowment effect and the methodologies used in them.

Update:

It has been called to my attention that many readers don't know what the "endowment effect" or the "WTP-WTA" gap is. The endowment effect postulates that people place a different value on a given item depending on whether they possess it or do not, as reflected by the WTP-WTA gap. Thus, if I am given a generic mug, it is postulated that I might only be willing to sell it to someone else ("Willing to Accept") for, say, $5. But if you are given the exact same mug, I might be willing to pay only $2 to buy it from you. It is argued that there is, therefore, a persistent gap between what I am willing to accept to alienate the mug on one hand, and what I am willing to pay on the other hand, and that this difference is explained by the mere coincidence of how the intial property right is allocated. As noted, the finding of an "endowment efffect" has been used to criticize the Coase Theorem, in that it suggests that even where transaction costs are low, parties will not necessarily bargain to allocate resources to their highest-valued use because the endowment effect suggests that parties will not be able to easily bargain-around the initial rights allocation. The study I cite concludes that there is in fact no endowment effect and no robust finding of a systematic gap that leads to a higher willingness to accept than willingness to pay for a given good.

I readily admit to being a sucker for anything that combines my two passions in life--law and sports. Thus, I commend to you, a recent paper by my colleage Steve Goldberg commenting on the criteria for choosing Supreme Court Justices. Just as winning the Heisman Trophy does not seem to predict which college football players will go on to succeed in the NFL, Goldberg notes that serving as a judge on a lower federal court is not a reliable predictor of greatness on the United States Supreme Court. Very interesting thesis and especially important given the tacit assumption by most lawyers and court-watchers that Supreme Court Justices should be chosen from the ranks of lower courts.

Top 20 Legal Thinkers:Legal Affairs is having a contest to see how many people will visit their website to help out friends, former professors, favorite bloggers, and ideological compadres — er, rather, to determine who are the Top 20 Legal Thinkers in America.

Specifically, the poll asks you to vote for "the country's most influential and important legal thinkers—the ones whose ideas are pushing the law forward (or backward, as the case may be)." Of course, if "the law" means legal doctrine, then the 9 members of the Supreme Court are the winners. Being "Supreme" will do that. But I don't know if that's what they have in mind.

The bloggers on the list of 125 nominees include blogfather Eugene, Lawrence Solum, Jack Balkin, Glenn Reynolds, Tom Goldstein, and (just in time) Richard Posner. To see how Legal Affairs picked its nominees, see here. Link via Howard, who isn't on the list himself but perhaps should be.

Before last spring, Miller planned on retiring to his home town of Young Harris to teach at the eponymous junior college there. He's a YHC graduate and former professor at the small Methodist school, which was founded in 1886 by a circuit-riding minister. But in May, David Franklin, a history professor there whose wife is academic dean, penned a vitriolic letter to Miller that was obtained by the Atlanta Journal-Constitution. In the letter, Franklin, from whom I took a Western history survey course during his first year there, 1979/80, said:

"You, Zell Miller, are a disgrace to your city, your county, your state and your country. Your attack upon the U.S. Senate that you sit in now was so unpatriotic it boggles the imagination."

In response, Miller declared that he wouldn't teach at the College, as the letter "makes it abundantly clear that I would not be, shall we say, warmly welcomed." And: "I have long put up with this kind of vitriol in the political world but I am not going to at my alma mater." . . .

[S]o politicized has higher education become that even the smallest academic communities now employ teachers who're only too happy to lash out at a native son who professes traditional conservative beliefs -- even if he also happens to be the school's most distinguished alumnus. . . .

Can there be any doubt that, had Miller spoken out against the Bush administration, his place in academe would have been assured? After all, Max Cleland, Georgia's embittered ex-Senator, found his liberal credentials far more useful in landing an academic post than in maintaining his Senate seat in a Red State. Viewed from that perspective, Miller's ostracism from his alma mater is a badge of honor. But for Young Harris College, it remains a shameful stain.

InstaPundit points to this, writing "Zell Miller is joining a law firm, because apparently his alma mater, where he had been scheduled to teach post-retirement, decided it didn't want him."

Now there might be more to the story than what Democracy Project wrote, but so far it seems like one professor harshly criticizing the Senator. In fact, it's one professor exercising his academic freedom in harshly criticizing the Senator.

I think the professor was wrong to do so (both in tone and on the substance), but absent some more evidence, it's hard to see how his speech could be imputed to the college as a "shameful stain" on the institution. Nor can I see how "academic communities" could properly make sure that they don't "employ teachers who're only too happy to lash out at a native son who professes traditional conservative beliefs." And while it's too bad that some faculty members are rude, neither do I think it profitable for colleges to try to completely exclude all people who might occasionally be uncollegial.

The flip side of college professors' freedom to speak is that the college doesn't endorse their speech (even if their spouses are administration members). It's true that the college might have taken steps to express its affection for Miller, and distance itself from Franklin's statements, but for all I know it might have. Certainly nothing in the story suggests that the college endorsed them, or that many other colleagues expressed similar sentiments.

So it's hard to see how this is evidence that Miller's place at the College was anything but "assured." (Universal affection for him, or even collegial politeness, wasn't assured, but that's outside the power of the College to assure.) He doesn't seem to have been "ostraci[zed]." Nor does there seem to be evidence that the College "didn't want him."

I think there's plenty of undue hostility towards conservatives in academia, and plenty of vitriol that ought to be condemned. But I'd hate to see people hold colleges responsible for isolated faculty members' speech, speech that the colleges ought to tolerate even when they disagree with it.

Wednesday, December 8, 2004

Public Service Announcement:
We interrupt our regularly scheduled blogging for this important public service announcement, brought to you by BBC news:

Men who use laptop computers could be unwittingly damaging their fertility, experts believe. Balancing it on the lap increases the temperature of the scrotum which is known to have a negative effect on sperm production, researchers found.

Here is the key information from Dr. Yefim Sheynki of SUNY Stony Brook:

"[Laptops] are frequently positioned close to the scrotum, and as well as being capable of producing direct local heat, they require the user to sit with his thighs close together to balance the machine, which traps the scrotum between the thighs." The researchers asked 29 healthy male volunteers aged between 21 and 35 to take part in an experiment. They then recorded the temperature changes to the scrotum caused by laptop use and different seating positions over one hour time periods. Just sitting with the thighs together, a posture needed to balance a laptop, caused scrotal temperatures to rise by 2.1C. When the men used a laptop in this position the average temperatures increased by 2.6C on the left of the scrotum and 2.8C on the right. . . . He said any changes might be reversible, but that repetitive use of a laptop in this way might cause permanent damage. "Until further studies provide more information on this type of thermal exposure, teenage boys and young men may consider limiting their use of laptop computers on their laps," he said.

If King Solomon's Casino doesn't do it for you, try this Weird Al meets Outkast way of celebrating the Jewish holiday. Warning: there is sound, although that's the point. And it's also kinda warped. My favorite line: "Sheh-vitz [of Manischewitz] and a kosherized pickle" in lieu of "shake it like a Polaroid picture." Runner-up: "Oy is just Yo backwards."

John Leland kicks off his entertaining new book, Hip: The History, with a seductive little linguistic anecdote. The word hip, he says, derives from the West African language Wolof, and was "cultivated by slaves" from West Africa. Leland goes on to use the etymology of the word as a framing device for part of his argument: Hip — the word and the concept — "was one of the tools Africans developed to negotiate an alien landscape, and one of the legacies they contributed to it." Sounds fascinating, right?

There's just one problem: The etymology is wrong. . . .

A particular telling quote: While Leland consulted various sources (which turned out to all flow from the same wrong initial source, or so says Sheidlower), "Leland also wrote to me, 'Of all the proposed etymologies I saw, the case for slave origins struck me as the strongest, earliest and most edifying.'" Whether a linguistic claim is repeated often turns largely on whether it is "edifying" or amusing or otherwise gratifying, and not enough on whether it's accurate.

The owner of Nonviolence.org, Martin Kelley, said . . . 'Yesterday I got a call from a publicist for CBS News's 60 Minutes. They're running a story tonight on 'Deserters,' U.S. military personnel who have fled to Canada rather than serve in Iraq. She was requesting that I talk up the program on Nonviolence. In nine years of publishing the peace site, I can't remember ever getting a call from a publicist before. I've talked to reporters from major news networks and papers, and I've talked a booking agent or two to arranging appearances on radio shows, but never a publicist.

My first reaction: Sound slimy that a news outlet is trying to get people on one side of the aisle to talk up its news story. My second reaction: Why should this be slimy? They're trying to get more people to watch their story — which they presumably think is valuable and accurate — and of course they're e-mailing those people who seem inclined to promote it favorably rather than those who seem less inclined to promote it or more inclined to criticize. (Of course, it's possible they also tried to approach some conservative bloggers, too.)

My third reaction: It's pretty cool that some mainstream media publicists think enough of blogs that they want to promote their tens-of-millions-of-viewers broadcasts there. My fourth reaction: Three reactions are enough.

In the spirit of Orin's recent successful experiment with comments, I'll turn on comments for this thread. No, it's not something I'm likely to do more often. [But you just said that you're doing this because it has just been done. Doesn't that mean that once it's been done twice, you're likely to do it again.-ed. Nah, slippery slopes are just a myth, long debunked by serious scholars.] Nor do I promise to read all of them in a timely fashion, or edit them to remove trolls, spam, repetitions, folly, etc. I'm trusting in everyone's forbearance and politeness here, always a winning strategy in this, the best of all possible worlds.

After years of false starts, state lawmakers voted Tuesday evening to reduce the steep mandatory prison sentences given to people convicted of drug crimes in New York State, sanctions considered among the most severe in the nation. The push to soften the so-called Rockefeller drug laws came after a nearly decade-long campaign to ease the drug penalties instituted in the 1970's that put some low-level first-time drug offenders behind bars for sentences ranging from 15 years to life. Under the changes passed Tuesday, which Gov. George E. Pataki said he would sign, the sentence for those same offenders would be reduced to 8 to 20 years in prison. The law will allow more than 400 inmates serving lengthy prison terms on those top counts to apply to judges to get out of jail early.

Good for them. I am against drug legalization, but mandatory-term sentences are usually bad news, and high mandatories for drug crimes are often the worst of the lot. My sense is that in the case of drug crimes, the imposition of severe sentences has little additional deterrent effect. Addicts are hard to deter. Dealers get locked away for a lot longer, but someone else replaces them to meet the consumer demand. On the whole, greater penalties should have a marginal effect on the price and availability of drugs — and higher price may lessen demand — but they do so at a very high price to defendants, their families, and the state that has to pay for prison. When a defendant can get a more severe sentence for dealing drugs then for committing a brutal violent crime, something is out of whack.

"I always jest to people, the Oval Office is the kind of place where people stand outside, they're getting ready to come in and tell me what for, and they walk in and get overwhelmed by the atmosphere. And they say 'man, you're looking pretty.'" —Washington, D.C., Nov. 4, 2004"

This is a job that requires crisp decision-making, and therefore, in order for me to make decisions, I've got to have people who bring, you know, their point of view into the Oval Office and are willing to say it.

I always jest to people: The Oval Office is the kind of place where people stand outside, they're getting ready to come in and tell me what-for, and they walk in and get overwhelmed by the atmosphere and they say, Man, you're looking pretty.

Therefore, you need people to walk in on those days when you're not looking so good and saying, You're not looking so good, Mr. President. . . .

What exactly is there that's remotely mockable about this? I report, you decide.

Incidentally, people occasionally fault my criticisms of the Bushisms. "They're just a joke," they say. Well, they are attempts at humor — but they are attempts at humor that criticizes Bush. (See the Introduction to the Bushisms book, excerpted here.) If you're going to criticize someone, it seems to me that you should do it fairly and aptly. Many of the Bushisms strike me as unfair and inapt, which is why I comment on them.

Finally, someone suggested that this is petty nitpicking on my part, and that I should move on to more important things. I offer a deal: If Slate stops its petty nitpicking of Bush — and nitpicking which strikes me as often incorrect — I'll stop my petty nitpicking of Slate.

Ten Charged for Basketbrawl:
The Detroit Free Pressreports this morning that Oakland County prosecutor David Gorcyca will files charges against ten individuals -- five Indiana Pacers players and five fans -- for their respective roles in the Nov. 19 melee in Detroit.

The Syndicated Racism of Sam Francis:
I do not believe that criticizing French history and culture is "essentialist," let alone racist (see here). Cultural criticism is not tantamount to racism. Alas, real racism still exists, and it finds its way into print all too often.
One recent example is this column by Samuel Francis, decrying the "brazenly" interracial subtext of ABC's "Desperate Housewives" intro to Monday Night Football, as well as the still-infamous Janet Jackson-Justice Timberlake Super Bowl performance and "wardrobe malfunction. Francis is aghast at the "radical" notion in such episodes that "interracial sex is normal and legitimate." The point of the MNF skit "was not just to hurl a pie in the face of morals and good taste but also of white racial and cultural identity." Francis writes further:

Breaking down the sexual barriers between the races is a major weapon of cultural destruction because it means the dissolution of the cultural boundaries that define breeding and the family and, ultimately, the transmission and survival of the culture itself.

Although Francis was long ago dropped by the Washington Times for his unsavory views, his column still manges to find its way into print. Francis apparently remains in syndication thank to Creators Syndicate. The folks at Media Matters for America (who, I admit, are not always so reliable) have rightly condemned the column and sent this letter to Creators President and CEO Richard Newcombe. It's a shame the distributors of Andy Capp, Heathcliff, and the Wizard of Id also see fit to distribute the likes of Sam Francis.
Update: Yes, in case you were wondering, the offending column was distributed by Creators Syndicate. I can't find it on the Creators site, but here's a Google cache of it.

Columbia lawprof Michael Dorf, a very highly regarded con law professor, offers his take on the Third Circuit's Solomon Amendment decision over at Findlaw:

The statute found unconstitutional by the court of appeals is truly odious, threatening both equal opportunity in the military and the institutional autonomy of universities. Yet, as I shall explain, the logic of the court's opinion striking it down is flawed.

A linguist from the University of Pittsburgh has published a scholarly paper deconstructing and deciphering the word "dude," contending it is much more than a catchall for lazy, inarticulate surfers, skaters, slackers and teenagers. An admitted dude-user during his college years, Scott Kiesling said the four-letter word has many uses: in greetings ("What's up, dude?"); as an exclamation ("Whoa, Dude!"); commiseration ("Dude, I'm so sorry."); to one-up someone ("That's so lame, dude."); as well as agreement, surprise and disgust ("Dude."). Kiesling says in the fall edition of American Speech that the word derives its power from something he calls cool solidarity — an effortless kinship that's not too intimate.

In an appearance before Congress in February, when the controversy over Janet Jackson's Super Bowl moment was at its height, Federal Communications Commission chairman Michael Powell laid some startling statistics on U.S. senators.

The number of indecency complaints had soared dramatically to more than 240,000 in the previous year, Powell said. The figure was up from roughly 14,000 in 2002, and from fewer than 350 in each of the two previous years. There was, Powell said, "a dramatic rise in public concern and outrage about what is being broadcast into their homes."

What Powell did not reveal—apparently because he was unaware—was the source of the complaints. According to a new FCC estimate obtained by Mediaweek, nearly all indecency complaints in 2003—99.8 percent—were filed by the Parents Television Council, an activist group.

This year, the trend has continued, and perhaps intensified.

Through early October, 99.9 percent of indecency complaints—aside from those concerning the Janet Jackson "wardrobe malfunction" during the Super Bowl halftime show broadcast on CBS— were brought by the PTC, according to the FCC analysis dated Oct. 1.

[t]he whole book is a mad charge (whose only equivalent I know is the fascist French literature of the 30's) against a diabolical nation, the incarnation of evil, bearing in the body and soul of its citizens the stigmata of an ill will the only aim of which throughout the centuries has been the humiliation of America the great.
This manner of trapping the entire culture of a country inside a caricature presented as eternal and characteristic has a name: essentialism. Pushed to such an extreme degree, and culminating in the profound question that ponders if ''the French, in short, will continue to be the French,'' essentialism is another name for a temptation to which it is surprising to see such apparently respectable minds succumb: racism.
The fact is, yes, there is a kind of racism in dragging out as evidence a text by Mark Twain that contains, we are told, ''more than a little truth'' and according to which ''the race consists of human beings and the French.'' Go ahead, these careful readers of ''Tom Sawyer'' urge, ''scratch a Frenchman'' and you will discover ''a savage'' if it's a man, a ''harlot'' if it's a woman — a brutishness, in any case, ''unknown in civilized lands''!
France and America deserve better than this opposition of two apparently antithetical but actually perfectly symmetrical lunacies.

if you just focus on the right denominator. My former student Kevan Choset points to this AP item, on the MSNBC site:

Although "Titanic" soared at the box office in 1997, according to a recent survey, it's most memorable line -- "I'm the king of the world!" -- sunk..

British baker Warburtons posed the question "What are your top three cheesiest moments in film?" to 2,000 U.K. moviegoers in celebration of the launch of their new cheese flavored crumpets. . . .

Warburtons reports that surveyed women opted for romantic comedy moments from films such as "Notting Hill" and "Jerry Maguire" while men preferred silly scenes from action flicks like "Top Gun" and "Braveheart." Despite the gender divide, 33 percent of the overall vote unanimously agreed on the "Titanic" yell as the cheesiest moment.

Commenting on the new blog Left2Right (see below), Prestopundit has an assignment for progressive intellectuals trying to understand the conservative mind: read some Hayek.

If leftist and independent academics want to engage non-leftists, they might consider engaging the ideas that non-leftists take seriously. It's hard to find a conservative who isn't massively influenced by the writings of Friedrich Hayek.

Pretty good advice. At the same time, it's not entirely clear that the goal of Left2Right is to engage conservative or libertarian ideas. Based on the blog's mission statement, my sense is that the goal is to understand why so many people voted for Bush, and to use those insights to help the next Democratic candidate win Ohio and Florida in 2008.

I e-mailed Jacob Weisberg to ask what he thought was Bushist about yesterday's Bushism of the Day, and he graciously responded:

The White House transcript didn't have "to." Hard to know what he actually said, but I'll switch to the Post version to make it more readable. In any case, that is not the joke. I define Bushisms as things Bush says that are funny for whatever reason, not merely mistakes.

The question I am most frequently asked about the Bushisms series is, "Do you really think the President of the United States is dumb?"

The short answer is yes.

The long answer is yes and no.

Dipping into this volume may leave the impression that George W. Bush is a simple dimwit. . . . If you don't care to pursue the matter any further, that view will serve. . . .

In reality, however, there's more to it. The assemblage of a presidential term's worth of malapropisms, solecisms, gaffes, spoonerisms, and truisms -- drawn together here from the best of Bushisms old and new -- tends to imply that Bush's lack of fluency in English is tantamount to an absence of intelligence. But as we all know from experience, the inarticulate can be shrewd, the fluent fatuous. In Bush's case, the symptoms indicate a specific malady -- some kind of language-skill deficit akin to dyslexia -- that does not indicate a lack of mental capacity per se. . . .

But perhaps the Bushisms column has a broader mandate than the Bushisms book, or both are meant to be a mix not just of "malapropisms, solecisms, gaffes, spoonerisms, and truisms" -- which are either mistakes (the first four) or vacuousness, which one might think of as a substantive mistake -- but also just things that are "funny for whatever reason."

Still, isn't this line funny largely because it is taken out of context? Would it really be that funny if read with the surrounding lines, as I quote them above, and understanding that it was a response to a question about beef import policy?

And in any event, might it not be better for the Bushisms column to include links to the transcripts, so that readers can see for themselves what the context might be (especially if they assume that most Bushisms are indeed "malapropisms, solecisms, gaffes, spoonerisms, and truisms" rather than just "funny for whatever reason")?

Bring Out Your Feedback:
Are you happy with the Volokh Conspiracy? Annoyed with it? Is there something you want to see more of? Less of? Tell us all about it. Although the VC doesn't normally allow comments, I tend to like them. So I am opening up comments for this post to give you a chance to give us your 2 cents. Anonymous is okay, but any abusive, mean, or rude comments will be deleted. Comment away.

UPDATE: Sorry for the technical problems. I'm working on them, although I don't know if I'll be able to fix them.

A large and very distinguished group of professors have started a new group blog, Left2Right, with the goal of trying to understand Red America. Hint: It's not all like this. I assume Left2Right will be followed shortly by Right2Left, in which bloggers from Red America try to understand very distinguished professors? Seriously, though, it looks interesting. Thanks to Brian Weatherson for the link.